NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-253
VERSUS
MICHAEL L. LARRY
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 76313 HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.
AFFIRMED. Annette Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Michael L. Larry
Asa A. Skinner District Attorney Terry W. Lambright Assistant District Attorney 30th Judicial District Court Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.
Defendant, Michael L. Larry, was charged by bill of information filed on
April 8, 2009, with possession of cocaine, a violation of La.R.S. 40:967.
Defendant entered a plea of not guilty on September 4, 2013. On September 6,
2013, Defendant withdrew his former plea and entered a plea of guilty. Defendant
was sentenced on November 12, 2013, to serve four years at hard labor. A motion
to reconsider sentence was filed on December 9, 2013, and was subsequently
denied. A motion for appeal was filed on January 7, 2014, and was later granted.
Defendant is before this court asserting one assignment of error wherein he
contends that his sentence is excessive. We find that Defendant’s claim lacks
merit and affirm.
FACTS
On November 24, 2008, Defendant was operating a vehicle that was stopped
because of a traffic violation. Thereafter, police executed a search warrant at
Defendant’s residence. During the search, police found residue in a cigar box in a
trash can. The residue was tested and determined to be cocaine.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that
there are no errors patent.
DISCUSSION
In his sole assignment of error, Defendant contends the four year hard labor
sentence imposed by the trial court violates U.S. Const. amend. VIII and La.Const.
art. 1, § 20, as it is nothing more than cruel and unusual punishment, and thus,
excessive. This court discussed the standard of review applicable to claims of
excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867
So.2d 955, 958-59, as follows:
The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58 [(La.App. 5 Cir. 1998)], stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.
Defendant pled guilty to possession of cocaine, which is punishable by
imprisonment for not more than five years with or without hard labor. La.R.S.
40:967(C)(2). Defendant received a sentence of four years at hard labor.
Defendant testified at the sentencing hearing. He indicated he was thirty-
seven years old, married, and had four children. Defendant admitted that he had
been convicted of aggravated assault and burglary of an inhabited dwelling in
Mississippi. Further, Defendant testified that he was out on bond for a drug
2 offense he committed in Indiana at the time he was arrested for the offense at issue
herein. After Defendant’s arrest in Vernon Parish, he was extradited to Indiana
and was incarcerated there for three and one-half years. While he was incarcerated
in Indiana, Defendant participated in a nine month drug rehabilitation program, a
six month anger management program, and a literacy program. Defendant also
took the GED exam but failed one part of the test. Further, Defendant had sought
to have the Louisiana detainer placed on him lifted because it prevented him from
having his sentence in Indiana modified.
Defendant was released in Indiana on August 26, 2013, and was extradited
back to Louisiana to face the subject charges. Defendant testified that he had not
been out of jail in the past four years and was to be on probation for two years
following his release in Indiana. Defendant indicated that, upon his release, he had
a family waiting on his return, a place to live, and a job at a landscaping company
in Indiana.
After Defendant testified, the trial court imposed sentence, stating the
following:
As he has stated in his testimony, he is approximately 37 years of age, has four children, and is married. There was a plea agreement in this case that there would be no habitual offender proceedings filed if he entered a guilty plea, which he has done.
This is, of course, a drug case and with all drug cases there is economic harm and impact on society in general. There were no grounds to justify this defendant’s conduct. He did not act under any provocation from any victim or any other person. As I stated, I think this defendant is in good health. He has a prior employment record in that he worked at a casino as a cook and has worked as a ranch farmhand at some point in time in Mississippi. He has an eleventh grade education. He does have some history of drug and alcohol abuse and does have a history of receiving drug and alcohol treatment. He does have a prior criminal record in that in 1995 he was convicted in Mississippi of aggravated assault and burglary, and then in 2005, he was convicted in Indiana of two counts of possession of cocaine as
3 well. It does not appear that this defendant is a person who is likely to respond to probationary treatment and that he is in need of correctional treatment. Any sentence lesser than the one that I’m going to give would deprecate the seriousness of this defendant’s offense.
Defendant argues the trial court did not give sufficient consideration to his
rehabilitative attempts, including the substance abuse treatment and the programs
he completed while incarcerated in Indiana. Defendant further argues that, based
upon the small amount of cocaine, his prior drug abuse history, the lengthy delay
between arrest and sentencing, the lost opportunities in Indiana as a result of the
Free access — add to your briefcase to read the full text and ask questions with AI
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
14-253
VERSUS
MICHAEL L. LARRY
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 76313 HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE
JOHN E. CONERY JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.
AFFIRMED. Annette Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT/APPELLANT: Michael L. Larry
Asa A. Skinner District Attorney Terry W. Lambright Assistant District Attorney 30th Judicial District Court Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.
Defendant, Michael L. Larry, was charged by bill of information filed on
April 8, 2009, with possession of cocaine, a violation of La.R.S. 40:967.
Defendant entered a plea of not guilty on September 4, 2013. On September 6,
2013, Defendant withdrew his former plea and entered a plea of guilty. Defendant
was sentenced on November 12, 2013, to serve four years at hard labor. A motion
to reconsider sentence was filed on December 9, 2013, and was subsequently
denied. A motion for appeal was filed on January 7, 2014, and was later granted.
Defendant is before this court asserting one assignment of error wherein he
contends that his sentence is excessive. We find that Defendant’s claim lacks
merit and affirm.
FACTS
On November 24, 2008, Defendant was operating a vehicle that was stopped
because of a traffic violation. Thereafter, police executed a search warrant at
Defendant’s residence. During the search, police found residue in a cigar box in a
trash can. The residue was tested and determined to be cocaine.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find that
there are no errors patent.
DISCUSSION
In his sole assignment of error, Defendant contends the four year hard labor
sentence imposed by the trial court violates U.S. Const. amend. VIII and La.Const.
art. 1, § 20, as it is nothing more than cruel and unusual punishment, and thus,
excessive. This court discussed the standard of review applicable to claims of
excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867
So.2d 955, 958-59, as follows:
The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58 [(La.App. 5 Cir. 1998)], stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and other courts.
Defendant pled guilty to possession of cocaine, which is punishable by
imprisonment for not more than five years with or without hard labor. La.R.S.
40:967(C)(2). Defendant received a sentence of four years at hard labor.
Defendant testified at the sentencing hearing. He indicated he was thirty-
seven years old, married, and had four children. Defendant admitted that he had
been convicted of aggravated assault and burglary of an inhabited dwelling in
Mississippi. Further, Defendant testified that he was out on bond for a drug
2 offense he committed in Indiana at the time he was arrested for the offense at issue
herein. After Defendant’s arrest in Vernon Parish, he was extradited to Indiana
and was incarcerated there for three and one-half years. While he was incarcerated
in Indiana, Defendant participated in a nine month drug rehabilitation program, a
six month anger management program, and a literacy program. Defendant also
took the GED exam but failed one part of the test. Further, Defendant had sought
to have the Louisiana detainer placed on him lifted because it prevented him from
having his sentence in Indiana modified.
Defendant was released in Indiana on August 26, 2013, and was extradited
back to Louisiana to face the subject charges. Defendant testified that he had not
been out of jail in the past four years and was to be on probation for two years
following his release in Indiana. Defendant indicated that, upon his release, he had
a family waiting on his return, a place to live, and a job at a landscaping company
in Indiana.
After Defendant testified, the trial court imposed sentence, stating the
following:
As he has stated in his testimony, he is approximately 37 years of age, has four children, and is married. There was a plea agreement in this case that there would be no habitual offender proceedings filed if he entered a guilty plea, which he has done.
This is, of course, a drug case and with all drug cases there is economic harm and impact on society in general. There were no grounds to justify this defendant’s conduct. He did not act under any provocation from any victim or any other person. As I stated, I think this defendant is in good health. He has a prior employment record in that he worked at a casino as a cook and has worked as a ranch farmhand at some point in time in Mississippi. He has an eleventh grade education. He does have some history of drug and alcohol abuse and does have a history of receiving drug and alcohol treatment. He does have a prior criminal record in that in 1995 he was convicted in Mississippi of aggravated assault and burglary, and then in 2005, he was convicted in Indiana of two counts of possession of cocaine as
3 well. It does not appear that this defendant is a person who is likely to respond to probationary treatment and that he is in need of correctional treatment. Any sentence lesser than the one that I’m going to give would deprecate the seriousness of this defendant’s offense.
Defendant argues the trial court did not give sufficient consideration to his
rehabilitative attempts, including the substance abuse treatment and the programs
he completed while incarcerated in Indiana. Defendant further argues that, based
upon the small amount of cocaine, his prior drug abuse history, the lengthy delay
between arrest and sentencing, the lost opportunities in Indiana as a result of the
Louisiana detainer, the programs he completed after the instant offense, and the
need to support his four children, a lesser sentence would have better served the
needs of society.
However, in his motion to reconsider sentence, Defendant merely claimed
his sentence was excessive. For this reason, we find that Defendant’s particular
concerns regarding his sentence cannot be addressed herein as such issues are
precluded from review. See La.Code Crim.P. art. 881.1(E); State v. Prejean, 10-
480, p. 2 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 251. We will, however, perform
a bare excessiveness review of Defendant’s sentence.
As previously stated, the record indicates the trial court considered the
nature of the offense and Defendant’s background prior to imposition of sentence
and discussed such on the record. The current offense was Defendant’s fourth
felony offense. Additionally, as part of a plea agreement, the State dismissed
charges in trial court docket numbers 76,314 and 76,315 and agreed that it would
not charge Defendant as a habitual offender. See State v. McCorkle, 97-966
(La.App. 5 Cir. 2/25/98), 708 So.2d 1212; State v. Whitfield, 08-641 (La.App. 3
Cir. 12/10/08), 998 So.2d 935; State v. Thornton, 44,077 (La.App. 2 Cir. 4/8/09), 8
4 So.3d 830. Thus, in light of Defendant’s criminal history, the benefit received
from the plea bargain, and the jurisprudence, Defendant’s sentence is not
excessive.
DISPOSITION
Defendant’s sentence is affirmed.
AFFIRMED.
This opinion is not designated for publication. Uniform Rules—Courts of Appeal,
Rule 2–16.3.